Teacher Regulation Agency – Lessons to learn

Our defence experts are regularly instructed by professionals across all major sectors including legal, health and education. Olliers do not just assist with criminal allegations rather we offer a holistic approach with our regulatory department also providing advice and assistance to those facing investigation and/or proceedings brought by their regulator in relation to allegations of professional misconduct.

This is inevitably a very stressful time for the professionals and indeed their families; one of the most common questions we are asked is, “How long will this process take?”. Unfortunately, the answer nowadays is very often to prepare clients for the long haul and a process which is likely to run for many months as opposed to weeks. Whilst this answer has now become rather common across many professions, in some cases, the delays are not just inordinate but now wholly unfair to all those involved.

The Teacher Regulation Agency (TRA) is one such organisation which has and continues to encounter considerable delays in progressing and concluding misconduct cases.

What is the TRA and what does it do?

The TRA provides support to employers, schools and head teachers in relation to their safeguarding responsibilities. Their role as the competent authority for teaching in England, means that the TRA is also responsible for awarding qualified teacher status to appropriately qualified teachers from outside England. Perhaps most significantly, TRA is the body tasked with acting on allegations of serious teacher misconduct and it is its recent record in this respect which has drawn criticism from teachers, trade unions, school leaders, lawyers and complainants alike.

TRA has the responsibility for:

• investigating all cases of misconduct and deciding which cases are serious enough to result in prohibition and therefore ought to be referred to a hearing
• deciding whether an interim prohibition order should be imposed during the course of an investigation, thereby preventing a teacher from working whilst an investigation is carried out
• administering the hearing process and procedures
• considering the recommendations of the professional conduct panel and deciding, on behalf of the Secretary of State, whether a prohibition notice is appropriate and if so whether or not a teacher may apply for a review of the order

Having received a referral, the first thing that the TRA will do is conduct an initial assessment to determine whether the matter ought to be investigated. The decision as to whether or not to conduct an investigation ought to be taken within three days of receipt of a referral.

If the decision is taken to conduct an investigation, a teacher will receive a letter notifying them of the allegation(s) and inviting them to respond, usually within 28 days. Teachers are not obliged to provide any submissions or evidence at this stage but it is prudent to seek legal advice as well-crafted submissions may result in matters being concluded without any onward referral.

The Investigation

For those cases which do result in an investigation, TRA will very often instruct an external law firm to carry out the investigation on its behalf. As part of the investigation stage, the TRA may make enquiries and/or request information or documentation from other relevant parties.

As soon as reasonably practicable, the TRA will send the teacher a letter in which it will set out the allegation(s) and provide copies of any documents considered relevant to the allegation(s). A teacher will be invited to provide any evidence or written submissions that they want the TRA to consider. This should normally be provided within 28 days and we strongly recommend that those under investigation seek legal advice and assistance from an experienced regulatory solicitor before sending any information to the TRA.

Once in possession of all relevant material, including the teacher’s evidence and submissions, the TRA will review the same and decide if there is a case to answer. If there is a case to answer, the matter will be referred to a professional conduct panel. Teachers will be notified of the decision by way of a “case to answer” letter, usually within five days of the decision being made.

The case to answer letter will set out the particulars of the allegations. A teacher will be asked to provide a written response within 14 days, confirming whether the facts are admitted and, if so, whether they accept that this amounts to unacceptable professional conduct, a conviction for a relevant offence or conduct which may bring the profession into disrepute.

If the facts are agreed and the teacher accepts that they amount to unacceptable professional conduct or any of the other headings, the teacher can ask for the case to be considered without the need for a hearing. A case will proceed to a professional conduct panel hearing if the teacher does not respond to the case to answer letter or if they respond but do not admit all matters or do not agree a statement of facts with the TRA.

Delay and the consequences

Figures from the TRA Annual Report and Accounts for the year ended 31 March 2023, showed that whilst TRA met its target to conduct an initial assessment of 95% of referrals within three working days from the date of receipt, the investigation and hearing stages painted a very different picture.

TRA targets indicate that cases formally investigated ought to be concluded or referred to a hearing within 20 weeks (average) from the commencement of the investigation; although down on the 21/21 year-end figures of 34.79 weeks, the 22/23 figures remained well above the target at 30.42 weeks.

Perhaps more shocking, the target to conclude cases considered at the hearing stage within 52 weeks (average) from the date of receipt of the referral was far exceeded with an average wait to conclusion of 113.14 weeks for 22/23, up from 85.29 weeks in 21/22 and 66.29 weeks in the previous year. It was even reported that two teachers have waited more than eight years for their cases to conclude which for most will seem utterly incomprehensible.

Of course there will be situations where delay may be unavoidable for example in cases where TRA are waiting for information from other parties, such as the police, employers or employment tribunals. That being said, the extent of the delays exposed by the annual reports cannot be explained away by a reliance on other organisations and action needs to be taken to get these delays under control.

The consequences of such delays are patently obvious. Those who are subject to investigation must endure ongoing uncertainty surrounding their professional and personal reputation which is wholly unfair. They will also likely suffer a financial impact if subject to suspension or an Interim Prohibition Order and we must not ignore or under-estimate the associated impact on the family of the professional.

At a time when mental health and well-being are such prevalent issues, it is a very real concern that such delays may well have a significant and harmful impact on the physical and mental health of those involved. Of course, everyone accepts that the Covid-19 pandemic created a backlog of cases across various sectors including regulatory misconduct proceedings but the problems cannot be allowed to persist especially so long after the height of the pandemic and in light of the significant advances in technology which have or should have made remote hearings and flexibility the norm as opposed to the exception.

Beyond the professionals themselves, there are also the complainants who must also wait for a conclusion to matters which could be equally damaging to their mental health and well-being. In addition, there is also the impact on the schools involved who may have to put additional safeguarding measures in place or rely upon supply teachers to cover for suspended staff which will be disruptive but also potentially extremely costly.

What’s being done?

TRA have quite properly acknowledged the increased and persistent delays. They have committed to putting additional resources into the system to reduce the backlog with new panellists recruited and changes introduced to their hearings model to allow for greater flexibility when it comes to getting matters listed. They must not, however, rest on their laurels and must ensure that their commitment to reducing the backlog and speeding up the overall process is back up by long-term action and not just a sticking plaster approach to quell the unrest from the profession and further afield.

How can Olliers assist with a TRA case?

The regulatory team at Olliers are committed to helping professionals defend their careers and reputation. Our experienced lawyers are on hand to provide legal advice and assistance to teachers and trainees facing investigation and/or proceedings brought by the TRA.

We are also able to assist with any associated criminal investigations or proceedings and our holistic approach ensures that those we represent have a seamless experience throughout the process.